93 Decision Citation: BVA 93-08164
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-20 635 ) DATE
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THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder.
2. Entitlement to service connection for a disorder
characterized as a pinched nerve on the right side.
REPRESENTATION
Appellant represented by: Department of Veterans Service,
Georgia
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. P. Hanson, Counsel
INTRODUCTION
The veteran served on active duty from February to June of
1972 and from July 1977 to October 1978.
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a rating decision of
February 1991 issued by the Atlanta, Georgia, Regional
Office (hereinafter RO). The veteran's notice of
disagreement was received in August 1991. The statement of
the case was issued in September 1991. The substantive
appeal was received in October 1991. A hearing was held
before a hearing officer in October 1991 and, in that same
month, such official continued and confirmed the prior
denial of entitlement to service connection for a
psychiatric disorder and a disorder characterized as a
pinched nerve on the right side.
In March 1992, the RO denied the veteran's new claim of
entitlement to service connection for a chronic kidney
condition. In March 1992, a supplemental statement of the
case was issued regarding the matters currently before the
Board on appeal. The veteran has been represented
throughout his appeal by the Department of Veterans
Services, Alabama. That organization submitted written
argument to the Board in October 1992. The appeal was
docketed at the Board in November 1992.
In a statement of October 1992, the representative asserts
that service connection is warranted for a kidney disorder.
Since this issue has not been procedurally developed for
appellate consideration, it is referred to the RO for
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he was kicked squarely in the
buttocks by a sergeant while on his initial period of active
duty and that, as a consequence, he developed a pinched
nerve on the right side and that this incident was a
contributing factor in his development of a psychiatric
disorder while on military service.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following a review and consideration of all the
evidence and material of record in the veteran's claims
folder, and for the following reasons and bases, the Board
finds that the preponderance of the evidence is against his
claims of entitlement to service connection for the
disorders at issue.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's service medical records are negative in
reference to any complaints, findings or diagnosis of a
psychiatric disorder. He was evaluated as having a
personality disorder just before his separation from active
duty.
3. The service medical records and those subsequent to
service are negative in reference to any disability
characterized as a pinched nerve on the right.
CONCLUSIONS OF LAW
1. A psychiatric disorder was not incurred in or aggravated
by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
1991); 38 C.F.R. § 3.303 (1992).
2. A disorder characterized as a pinched nerve on the right
was not incurred in or aggravated by military service.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R.
§ 3.303 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board find that the veteran's claim is well grounded in
that it is plausible within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). In addition, we are satisfied that
all relevant facts are on file and that the Department of
Veterans Affairs (VA) has met its duty to assist the veteran
in the development of facts pertinent to his claim, as
mandated by 38 U.S.C.A. § 5107(a) (West 1991).
The service medical records pertinent to the veteran's
initial period of active duty in 1972 and those referrable
to his subsequent period of active duty are silent in
reference to any complaints, findings or diagnosis of a
psychiatric disorder or a disorder characterized as a
pinched nerve on the right. During th initial period of
active duty, the veteran was seen for complaints of right
flank pain in March and April 1972, but clinical testing was
negative for pathology.
At the conclusion of a mental status evaluation, dated in
July 1978, provided at the request of the veteran's command,
it was concluded that, while he had had four nonjudicial
punishment awards as well as four more pending, there was no
indication that any of these offenses were the product of a
psychiatric disorder and it was concluded that his
disciplinary problems in service were due to an immature and
inadequate personality. On his separation physical
examination, he was clinically evaluated as normal in
reference to both a psychiatric disorder and a disorder
characterized as a pinched nerve on the right.
A private physician reported in October 1991 that the
veteran was currently under his care for a schizo-affective
disorder and that he was on medication. At a hearing held
before a hearing officer at the RO in October 1991, the
veteran stated that, during the period January to June,
which must have been his initial period of active duty, he
was kicked squarely in the behind by a sergeant and though
he was examined and looked at by a doctor, he was returned
to normal duty. He also reported that the drinking of
alcoholic beverages during his periods of military service
had caused him to develop a psychiatric disorder.
A report of psychiatric examination conducted by VA in
December 1991 shows that the veteran was sullen and
withdrawn, but free of any objective evidence of a
psychiatric disorder, to include a personality difficulty.
A report of general medical examination conducted by VA on
the same date includes a denial by the veteran of any
increased sensation on the right side or radicular
discomfort of either lower extremity, sphincter weakness, or
fasciculation. He also denied having had any limitation of
back motion or use. Such examination was also negative for
any objective evidence of a disorder characterized as a
pinched nerve on the right. His reports of contemporaneous
VA outpatient clinic treatment are consistent with what has
been so far described and they pertain primarily to the
veteran's treatment for alcohol abuse.
The law provides that service connection for a disability is
warranted if it is shown to have been incurred in or
aggravated by military service. 38 U.S.C.A. § 1131 (West
1991).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the
claim. 38 C.F.R. § 3.303(b) (1992).
A personality disorder is not a disease within the meaning
of applicable legislation providing for disability
compensation benefits. 38 C.F.R. § 3.303(c) (1992).
Under the circumstances of this case, the Board finds that
whatever adjustment or disciplinary problems the veteran had
in service were due to a personality disorder which is not a
disability for compensation purposes, as stated above. In
addition, while he was treated for a psychiatric disorder in
1991, such treatment was afforded too many years after
service to have any relationship to any event shown in
service, to include the situation wherein he was allegedly
kicked by a sergeant while undergoing initial active duty
for training.
Similarly, in the absence of any evidence of an injury to
the veteran's right side, to include a pinched nerve, either
in service or subsequent to service, the Board is without an
objective basis upon which to predicate entitlement to
service connection.
In arriving at these decisions, we have taken under
advisement the testimony provided by the veteran, but in the
absence of any objective evidence of physical or mental
disability stemming from an incident in service whereby he
allegedly was kicked by a drill sergeant, the Board, in
considering this evidence and the other materials on file is
without an adequate basis upon which to act favorably in the
appeal.
ORDER
Service connection for a psychiatric disorder or a
disability characterized as a pinched nerve on the right
side is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
MEMBER TEMPORARILY ABSENT THOMAS J. DANNAHER
EUGENE A. O'NEILL
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.